Citation Nr: 0109384
Decision Date: 03/30/01 Archive Date: 04/03/01
DOCKET NO. 96-23 319 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina
THE ISSUES
1. Entitlement to service connection for nasal congestion,
claimed as due to an undiagnosed illness.
2. Entitlement to service connection for memory loss,
claimed as due to an undiagnosed illness.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
J. Connolly Jevtich, Counsel
INTRODUCTION
The veteran had active service from June 1987 to June 1993,
including combat service on the Persian Gulf War.
This appeal is before the Board of Veterans' Appeals (Board)
on appeal from a July 1995 rating decision by the Columbia RO
that denied service connection for headaches, nasal
congestion, and memory loss. The veteran perfected his
appeal as to all three issues.
In October 1997, the RO also denied service connection for a
sleep disorder, but apparently was unable to locate the
veteran to notify him of this decision and his procedural and
appellate rights.
In an April 1998 rating decision, the RO confirmed and
continued the denial of the claims for service connection for
headaches, nasal congestion, memory loss, and a sleep
disorder. Service connection was granted for post-traumatic
stress disorder (PTSD) and a 30 percent rating was assigned.
In addition, increased rating for bilateral knee disabilities
and a left shoulder disability were denied. The veteran was
notified of this decision and of his procedural and appellate
rights. In January 1999, a notice of disagreement was
received as to the issue of a higher rating for PTSD. The
veteran did not initiate an appeal as to the other issues.
In February 1999, the Board granted service connection for
headaches and remanded the issues listed on the front page of
this decision to the RO for further development.
In March 1999, the RO implemented the Board's February 1999
decision and assigned a 10 percent rating for service-
connected headaches.
In an April 1999 rating decision, service connection was
granted for tinnitus and a 10 percent rating was assigned.
In addition, an increased rating of 10 percent was granted
for service-connected flatfoot. Also, a higher rating of 50
percent was assigned for PTSD. In May 1999, the veteran was
notified of this decision and of his procedural and appellate
rights, but he did not initiate an appeal.
In July 2000, the RO granted an increased rating of 20
percent for the veteran's left shoulder disability. This
rating was confirmed and continued in an August 2000 rating
decision. The veteran was notified of these decisions and of
his procedural and appellate rights, but he did not initiate
an appeal.
REMAND
The veteran contends that he has nasal congestion and memory
loss, which are both "undiagnosed illnesses" which have
resulted from his service in the Persian Gulf.
A review of the record shows that the veteran has been
treated continuously for complaints of nasal congestion since
his separation from service. He has also been afforded
several VA examinations. An August 1993 examination resulted
in a diagnosis of chronic sinusitis; a March 1995 examination
resulted in a diagnosis of sinusitis and rhinitis; and
another March 1995 examination resulted in a diagnosis of
rhinitis and a deviated septum. Also, outpatient treatment
records document complaints of nasal congestion.
In February 1999, the Board remanded these issues to the RO
for the RO to obtain relevant medical records and for the
veteran to be afforded a "Persian Gulf" VA examination.
In June 1999, the veteran was afforded this examination which
resulted in a diagnosis of sinus congestion.
A review of this evidence, the Board believes, does not
sufficiently show that the veteran's respiratory complaints
cannot be attributed to any known clinical diagnosis and that
it is as likely as not that such signs and symptoms are due
to the veteran's service in the Persian Gulf. In this
regard, his complaints have been attributed, on several
occasions, to clinical diagnoses. However, the most recent
VA examination did not attribute the veteran's complaints of
a clinical diagnosis, but the examiner did not opine as to
whether it is as likely as not that such respiratory
complaints are due to the veteran's service in the Persian
Gulf.
With regard to the claim of memory loss, the record does not
show continuos complaints of memory loss since service,
rather, the veteran's complaints of memory loss have been
consistent since 1999. In a January 1999 VA outpatient
report, the veteran complained of memory loss. He also
complained of memory loss at a March 1999 VA PTSD
examination. Upon his June 1999 examination, the examiner
indicated that the veteran had memory loss of uncertain
etiology. In February 2000, VA records show that an examiner
recommended full neuropsychiatric testing in order to
determine the etiology of the veteran's memory loss. The
examiner suggested that the memory loss may be due to the
veteran's medications and/or depression. In addition, the
Board notes that the veteran is service-connected for PTSD
and it is unclear if the veteran's memory loss is a
manifestation of that illness.
Thus, the Board also believes that the record does not
sufficiently show that the veteran's complaints of memory
loss cannot be attributed to any known clinical diagnosis and
that it is as likely as not that such signs and symptoms are
due to the veteran's service in the Persian Gulf. In this
regard, his complaints have been possibly attributed to
clinical diagnoses. However, the most recent VA examination
did not attribute the veteran's complaints of a clinical
diagnosis, but the examiner did not opine as to whether it is
as likely as not that such respiratory complaints are due to
the veteran's service in the Persian Gulf. Also, formal
neuropsychiatric testing has been recommended to resolve the
etiology of the veteran's complaints of memory loss.
In addition, the Board notes that the veteran has received
regular treatment at the Augusta VA Medical Center, the
Greenville VA Clinic, and the Columbia VA Medical Center. As
such, current records from these facilities should be
requested. See Dunn v. West, 11 Vet. App. 462, 466- 67
(1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The
Board notes that such treatment records, especially since
they might contain clinical findings, diagnostic study
results and/or conclusions that might be pertinent to the
disposition of this claim.
In addition, the Board notes that the veteran's claims should
be adjudicated on the merits with consideration of
38 U.S.C.A. § 1154(b) as the veteran served in combat.
While the Board regrets that another remand of the veteran's
Persian Gulf War claims will further delay a decision on
these matters, the Board would emphasize that the above-
requested development is consistent with a significant change
of law during the pendency of this appeal. On November 9,
2000, the President signed into law the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096,
which, among other things, redefines the obligations of VA
with respect to the duty to assist. This change in the law
is applicable to all claims filed on or after the date of
enactment of the Veterans Claims Assistance Act of 2000, or
filed before the date of enactment and not yet final as of
that date. Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, § 7(a), 114 Stat. 2096, 2099. See VAOPGCPREC
11-00; Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991).
In addition to conducting all requested development, the RO
should undertake any additional development and/or
notification action deemed warranted by the Act.
Furthermore, as noted in the introductory portion of this
decision, in an April 1998 rating decision, the RO granted
service connection for PTSD. In January 1999, notice of
disagreement was received as to the assigned rating. As
such, the RO is now required to send the veteran a statement
of the case as to the issue of the propriety of the initial
ratings assigned for the veteran's service-connected PTSD in
accordance with 38 U.S.C.A. § 7105 and 38 C.F.R. §§ 19.29,
19.30. In this regard, the United States Court of Appeals
for Veterans Claims (known as the United States Court of
Veterans Appeals prior to March 1, 1999) (hereinafter, "the
Court") has held that where a notice of disagreement has
been submitted, the veteran is entitled to a statement of the
case. The failure to issue a Statement of the Case is a
procedural defect requiring a remand. Manlincon v. West 12
Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398
(1995).
The law requires full compliance with all orders in this
remand. Stegall v. West, 11 Vet. App. 268 (1998). Although
the instructions in this remand should be carried out in a
logical chronological sequence, no instruction in this remand
may be given a lower order of priority in terms of the
necessity of carrying out the instructions completely.
Accordingly, these matters are hereby REMANDED for the
following action:
1. The RO undertake all necessary
development to obtain and associate with
the claims file all outstanding records
of treatment pertaining to the veteran.
This should specifically include any
outstanding records from the Augusta VA
Medical Center, the Greenville VA Clinic,
and the Columbia VA Medical Center; as
well as from any other source or facility
identified by the veteran. If any
requested records are not available, or
the search for any such records otherwise
yields negative results, that fact should
clearly be documented in the claims file,
and the veteran and his representative
should be duly notified. The veteran
should be informed that he may submit
additional medical records, also, and the
RO should afford him an opportunity to do
so before arranging for the veteran to
undergo medical examination.
2. After associating with the claims
file all additional records received
pursuant to the above-requested
development, the veteran should be
afforded appropriate specialty
examinations with regard to his claims
concerning nasal congestion and memory
loss, as chronic disabilities resulting
from an undiagnosed illness. The RO's
actions in this regard should comport
with the directives pertinent to Gulf War
claims as detailed in M21-1, Part III,
Change 74 (April 30, 1999). The RO
should provide the examiners a list of
the symptoms the veteran is claiming are
manifestations of an undiagnosed illness.
The entire claims file, to include all
evidence added to the record pursuant to
this REMAND, as well as a complete copy
of this REMAND, must be made available to
and be reviewed by the physician(s)
designated to examine the veteran.
(a) Each examiner should note and detail
the veteran's reported symptoms relevant
to the appropriate specialty.
(b) Each examiner should determine if
there are any objective medical
indications that the veteran is suffering
from the reported symptoms.
(c) Each examiner should opine as to the
date of onset/etiology of the reported
symptoms and whether it is at least as
likely as not that these signs and
symptoms are related to the veteran's
service in the Persian Gulf.
(1) Respiratory Examination: The
examiner should determine whether it
is at least as likely as not that
the veteran's reported nasal
congestion is attributable to a
known clinical diagnosis, such as
sinusitis or rhinitis. If the
manifestations cannot be attributed
to a diagnosed illness, the examiner
should be asked to determine if
there is affirmative evidence that
the undiagnosed illness was not
incurred during active service
during the Gulf War, or that the
undiagnosed illness was caused by a
supervening condition or event that
occurred between the veteran's most
recent departure from service during
the Gulf War. The examiner should
opine as to the date of
onset/etiology of the reported
symptoms and whether it is at least
as likely as not that these signs
and symptoms are related to the
veteran's service in the Persian
Gulf.
(2) Neuropsychiatric Examination:
The examiner should determine
whether it is at least as likely as
not that the veteran's memory loss
is attributable to a known clinical
diagnosis, such as PTSD, depression,
or as a result of certain
medications, and, if so, which
medications are responsible for the
memory loss. If the manifestations
cannot be attributed to a diagnosed
illness, the examiner should be
asked to determine if there is
affirmative evidence that the
undiagnosed illness was not incurred
during active service during the
Gulf War, or that the undiagnosed
illness was caused by a supervening
condition or event that occurred
between the veteran's most recent
departure from service during the
Gulf War. The examiner should opine
as to the date of onset/etiology of
the reported symptoms and whether it
is at least as likely as not that
these signs and symptoms are related
to the veteran's service in the
Persian Gulf.
All opinions expressed should be
supported by reference to pertinent
evidence. If the examiner disagrees
with any opinions contained in the
claims file which contradict his or
hers, the reasons for the
disagreement should be set forth in
detail.
3. To help avoid future remand, the RO
should ensure that all requested
development has been completed (to the
extent possible) in compliance with this
REMAND. If any action is not undertaken,
or is taken in a deficient manner,
appropriate corrective action should be
undertaken. See Stegall v. West, 11 Vet.
App. 268 (1998).
4. The RO must also review the claims
file and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied..
5. After completion of the foregoing
requested development, and after
completion of any other development
deemed warranted by the record, the RO
should consider the veteran's claim for
service connection for nasal congestion
and memory loss in light of all pertinent
evidence of record and legal authority,
to specifically include that cited to
herein, with consideration of 38 U.S.C.A.
§ 1154(b). The RO must provide adequate
reasons and bases for its determinations,
citing to all governing legal authority
and precedent, and addressing all issues
and concerns that were noted in the
REMAND.
6. If any benefit requested by the
veteran continues to be denied, he and
his representative must be furnished a
supplemental statement of the case and
given an opportunity to submit written or
other argument in response thereto before
his claims file is returned to the
Board for further appellate
consideration.
10. The RO should send the veteran a
statement of the case as to the issue the
propriety of the initial ratings assigned
for the veteran's service-connected PTSD
in accordance with 38 U.S.C.A. § 7105 and
38 C.F.R. §§ 19.29, 19.30. If the
veteran perfects his appeal by submitting
a timely and adequate substantive appeal,
then the RO should return the claim to
the Board.
The purpose of this REMAND is to afford due process and to
accomplish additional development and adjudication; it is not
the Board's intent to imply whether the benefits requested
should be granted or denied. The veteran need take no action
until otherwise notified, but he may furnish additional
evidence and/or argument while the case is in remand status.
See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v.
Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8
Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129,
141 (1992).
This REMAND must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
JACQUELINE E. MONROE
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).